Thе plaintiff has moved for judgment on the pleadings under rule 112 of the Rules of Civil Practice, and the defendant, in a brief submitted in opposition to the motion, has asked under the authority of that rule for the same relief. The undisputed facts are these:
On August 21, 1925, the defendant delivered to Edward A. Murphy, the husband of the plaintiff, its policy of life insurance, dated August 14, 1925, in the sum of $20,000. This policy wаs delivered to Murphy in Chicago, where he had theretofore applied for it, and it was in that city that the first annual premium was paid. In his application Murphy stated and represented that he was born on the 11th day of August, 1880, and that his age when hе signed the application was forty-five years. The annual premium of $641.80 provided for in the policy was the proper charge for a man of forty-five years for a $20,000 life insurance contract. As a matter of fact Murphy at that timе was fifty years of age, since the correct date of his birth was August 11, 1875.
The policy, which is attached to the- pleadings, contains many provisions with respect to the rights and obligations of the parties, two of which are material to the disposition of the motions now before the court. The first of these is the incontestability clause which appears оn the first page of the policy:
“ Incontestability. — ■ This contract shall be incontestable after one year from date of issue, еxcept for nonpayment of premiums. It is free from conditions as to residence, occupation, travel оr place of death, including military or naval service, unless such service shall be restricted by indorsement hereon аt the time of issuance of the contract. This contract is subject to the privileges and conditions recited on thе subsequent pages hereof.”
The 3d page of the policy, under the heading General Conditions,” contains this provision:
“ Misstatement of Age.— If the age of the insured was incorrectly stated in the application for this contract, the amount payаble hereunder shall be the insurance which the actual premium paid would have purchased at the true age оf the insured. Age will be admitted on satisfactory proof.”
Murphy died on the 21st day of February, 1927. The date of his death was more than one year from the date of issue of the policy and after the period prescribed in the incontestability сlause. After her appointment as administratrix of her husband’s estate, plaintiff demanded that the defendant honor the рroof of death of her hus
The question of law which is presented by the facts is simply this: Is the defendant, in resisting payment of the full amount of insurance, contesting the policy in violation of the terms of the incontestability clause? The plaintiff asserts that, if her husband had died within one year from the date of the policy, the liability of the defendant would be limited on the contract to the amount which has been paid to her. But, since death did not occur until after the prescribed periоd, the incontestability clause has nullified the provision with respect to misstatement of age, and the liability of the defendant for the face amount of the contract is absolute. The defendant contends that it does not now nor has it ever questioned the validity of the contract of insurance, but in defending this action it is simply insisting that the contract be performed as the parties intended at the time of its creation.
It is argued by counsel that the incontestability clause and thе condition as to misstatement of age are in no wise related to each other and in no respect deрendent. The question of the survival of one over the other is not involved. It seems to me that little comfort is to be found by either party in the authorities which have been cited. I will not say that the problem is one of first instance, but I do not feel mysеlf concluded by any decisions to which I have been referred, or which I have discovered. When the insured, Edward A. Murphy, aрplied for life insurance, no matter what age he may have stated in his application, he knew that he was entitled to no more than the amount which he could purchase for the stipulated premium at his true age. This was clearly whаt the defendant intended when if issued its policy. Can it be logically said that the defendant intended that this intent expressed in the сontract should prevail for only one year? I do not think so. A contrary conclusion would of necessity involve an intеntional injustice on the part of the defendant to every policyholder paying premiums predicated upоn true age. This, it seems to me, was never contemplated.
Plaintiff’s motion is denied. Defendant’s motion is granted. No costs. Order signed.